Hugh Hewitt on Legal Tradition

I was just listening to Hugh Hewitt — who I rarely agree with on partisan matters and generally consider to be a Republican hack — when he was discussing the status of children born in the United States to illegal immigrants. Hewitt invoked past legal precident in support of his opinion (the specifics of which are irrelevant) as if that were sufficient to make his case.

Mr. Hewitt unwittingly accepts the following principle — or at the very least, must accept it to ground his assertion,

(L) For any legal matter m, if m is consistent with a legal precident, then m is morally & legally justified.

This principle may seem initially plausible — maybe not — so long as the precident to which is appeals is morally & legally justified. But this principle doesn’t say that; it simply says as long as m is consistent with current precident whatever that may be.

p1. If the decision d in the Dred Scott case is consistent with a legal precident p, then d is morally & legally justified (principle L)
p2. It is not the case the d.

p3. So, d is not consistent with p (MT 1,2)

Clearly p3 is wrong — or at the very least it could have been — in that the Dred Scott case was clearly consistent with p. So what is the problem. It’s not the modus tollens rule; at least I don’t want to go down that road. So what could it be? It is the conditional; principle L should be reformulated.

(L’) For any legal matter m, If m is consistent with legal precident & meets condition C (C being morally & legally permissible), then m is morally and legally justified.

Now perhaps (L’) has its problems. I don’t want to explore that here, but the point remains that a condition needs to be included that must be met in order for m to be justified — its takes more than legal precidence to justify a legal decision (this commits the fallacy of traditional wisdom).

So if we return to Hewitt’s assertion, he is stating that this particular legal matter m1 is consistent with precident and implicitly asserting that is meets condition C — either that or he would be ignoring the problem of something being immortal and yet consistent — without any justification.

This is simply begging the question. Once that is point is made, it becomes clear that altought Hewitt seems to be justifying his position by appealing to legal precidence, he is really simply assuming the necessary condition he needs in order to truly justify his position.

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